Table of Contents
Sweepstakes, Contests, and Promotions
Third Party Content, Links, and Applications
Suspension and Termination
Disclaimer of Warranties
Limitation of Liability
Location and Territorial Restrictions
Additional Terms Regarding Apple App Store
Governing Law and Venue
Changes to Terms
Changes to Services
1. Account Registration
To access some features of TV Time, you may be required to create an account (“User Account”) and/or connect via a third party platform like Facebook, Google, or Netflix. You must be at least 16 years of age to register for a User Account, and by registering you represent and warrant that you are eligible for a User Account under this provision.
When creating a TV Time account, you agree that all account registration information you submit will be accurate and updated. You are prohibited from choosing a user ID: (a) that is subject to the rights of another person without permission; (b) with the intent to impersonate another person, entity, business or organization; or (c) that is inappropriate, offensive or obscene. We reserve the right to refuse account registration for any reason or no reason.
You are responsible for maintaining the confidentiality of your password. You agree to notify us immediately, as set forth in the Contact Us section below, of any unauthorized use of your account and agree that WNI is not liable for any loss or damage arising from your failure to safeguard your password. To the fullest extent allowed by law, all activity conducted in connection with your User Account will be your responsibility.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in any account stored or hosted on the Service, and you further acknowledge and agree that all rights in and to such accounts are and shall forever be owned by and inure to the benefit of WNI. You may not transfer, share or make available your account information to others. Any distribution by you of your account information may result in suspension, termination or cancellation of your access to the Service.
2. Intellectual Property
- a. WNI Ownership
Except with respect to User Content (defined below), WNI, its licensors, or suppliers own all rights, title and interest in and to all other content, software (including source code), logos, icons, TV Time's "look and feel," text, graphics, images, video clips, sound clips, notices, data, page layout, selection and arrangement of the content at TV Time, the features and functionality of TV Time, and any compilation of the foregoing, and all copyrights, trademarks, patents, trade secrets, and other intellectual property rights embodied therein, whether or not applied for or registered (collectively, “TV Time Content”). The TV Time Content and the User Content is collectively referred to in these Terms as “Content.”
You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, incorporate into another website, app, or other service, or in any way exploit any of the TV Time Content, in whole or in part, except as set forth in these Terms, without the specific permission of WNI or its licensors or suppliers.
Any third party trademarks present on TV Time are trademarks of their respective owners. Any images of persons or personalities contained on TV Time are not an indication or endorsement of WNI or any particular product or WNI's services unless otherwise indicated.
WNI and its licensors and suppliers reserve all rights not expressly granted in and to the TV Time Content.
- b. Our License to You
Subject to your compliance with these Terms, we grant you a limited, personal, revocable, non-exclusive, nontransferable license to:
- i. download, install, access and use TV Time solely for your personal, non-commercial use on computers and/or devices that you own or control;
- ii. link to TV Time, provided however, that your or any third party website, app, or other service that links to TV Time (1) must not frame or create a browser or border environment around any of TV Time Content or otherwise mirror any part of TV Time; (2) must not imply that WNI is endorsing or sponsoring it or its products or services, unless WNI has given it prior written consent; (3) must not present false information about, or disparage, tarnish, or otherwise, in WNI’s sole opinion, harm WNI or TV Time; (d) must not use any WNI trademarks without the prior written permission from WNI; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in WNI’s sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to TV Time, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, WNI reserves the right to prohibit linking to TV Time for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.
The foregoing license does not include any right to modify, publish, participate in the transfer or sale of, reproduction, or creation of derivative works from the TV Time Content, except as and only to the extent expressly stated above.
We reserve any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to download, install, access and use TV Time comprise a limited license and do not constitute the sale of any software program.
- c. User Content
You may have the opportunity to publish, transmit, or otherwise make available (collectively, “Post”) through TV Time certain content, including comments, photos, images, and other material or information (collectively, "User Content"). You are solely responsible for the User Content that you Post on or through TV Time. You acknowledge that other users of the TV Time, and not WNI, are similarly responsible for all User Content they Post using TV Time. You agree that you have no right, title, or interest in or to any Content that you have not Posted that appears on or through TV Time.
WNI does not, and cannot, pre-screen or monitor all User Content. However, our representatives may monitor and/or record your communications when you are on TV Time, and you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any User Content, including without limitation chat text or voice communications.
We are not responsible or liable for any User Content. We have the right, but not the obligation, in our sole discretion, to edit, refuse to post or remove any User Content.
- d. Your User Content License to WNI
You hereby grant to WNI a non-exclusive, universe-wide, royalty-free, sublicensable, perpetual and irrevocable right and license (including any moral rights) to use, copy, modify, adapt, create derivative works from, distribute, publicly display, publicly perform, publish, and otherwise exploit any User Content provided by you, as well as all modified and derivative works thereof, in whole or in part, in any languages, together (at WNI’s option) with the names and likenesses of any persons identifiable therein, and in any form or media now known or later developed, without any further notice to you, and without any requirement of permission from or payment to you or any other person or entity. To the extent permitted by applicable laws, you hereby waive any moral rights you have in any User Content.
- e. No Confidential Relationship/No Unsolicited Materials
It is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested, to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, WNI does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted and you agree that any such ideas transmitted to WNI are included in the above license you grant to WNI for any User Content.
You agree and understand that we are not obligated to post, keep, or use your User Content.
- f. Your Warranty to WNI
You represent and warrant that you are the owner of all rights, title, and interest in and to the User Content you post (or that such User Content is in the public domain), or otherwise have all rights necessary to grant the license provided for in these Terms, including without limitation that any other holder of any universe-wide intellectual property right, including moral rights (to the extent allowed by applicable law), in the User Content you Post has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You further warrant that the User Content you Post is accurate; will not violate the rights of any third party, including without limitation any copyright, property, or privacy right; does not violate these Terms; and will not cause injury to any person or entity.
In the event any User Content you Post on or through TV Time infringes or may, in WNI’s sole judgment, infringe on another's intellectual property or other rights, WNI reserves the right to remove such User Content, which may occur at any time and without prior notice.
- g. Copyright and Other Intellectual Property Infringement Claims
- i. Termination of Repeat Infringer Accounts. It is our policy, in appropriate circumstances and at our sole discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
- ii. DMCA Take-Down Notices. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided TV Time infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) ("DMCA") by sending the following information in writing to WNI's designated copyright agent at Whip Networks, Inc. c/o Jason Weiss, 1841 Centinela Ave., Santa Monica, CA 90404, or by phone at 310-998-1976 or by email at firstname.lastname@example.org:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- An identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- An identification of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work within TV Time;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and/or email address;
- A written statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- iii. Other Rights. If you believe that any content on TV Time violates your exclusive rights other than copyrights, please provide us at least the following information: (a) your physical or electronic signature; (b) identification of the material that you claim is infringing your exclusive rights and information reasonably sufficient to permit us to locate the material; (c) an explanation of the exclusive rights that you own/have and why the you believe the content infringes those rights, sufficient for us to evaluate the complaint; and (d) accurate contact information for you. Please send your complaint to email@example.com.
- iv. It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
3. User Conduct
As a condition of your use of TV Time, you agree not to use TV Time for any purpose prohibited by these Terms, by applicable law, or in any other manner that we deem objectionable in our sole discretion. You will not, and will not permit or assist any third party to, take any action or Post any User Content on or though TV Time that:
- a. is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
- b. is unlawful, harassing, discriminatory, unethical, disruptive, or for the promotion of illegal activities;
- c. infringes on any copyright, trademark, patent, trade secret, right of publicity, right of privacy, or any other right of another person or entity;
- d. asks users for or discloses their personal information, including their address, phone number, e-mail address, credit card number, or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature;
- e. uses TV Time for any commercial purpose, including without limitation contests and sweepstakes; and product or service sales, rental, leasing, or barter;
- f. constitutes spam, chain letters, surveys, or unauthorized or unsolicited advertising;
- g. contains information that is malicious, false, or inaccurate;
- h. improperly claims the identity of or otherwise impersonates another person or entity;
- i. uses, reproduces, or removes any copyright, trademark, or other proprietary notices from any TV Time or third party materials;
- j. makes any automated use of TV Time, or takes any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
- k. tampers, interferes with, or disturbs TV Time's functionality;
- l. engages in or attempts to engage in any potentially harmful acts that are directed against TV Time, including but not limited to violating or attempting to violate any security features of TV Time, including digital rights-management technology or other features or technology that limits or prevents use of TV Time or the Content therein; using manual or automated software or other means to scrape, crawl, spider, or similarly access any portion of TV Time or harvest or manipulate data (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); introducing or sending viruses, worms, spyware, malware, or any other kind of harmful code into or through TV Time; interfering or attempting to interfere with the proper functioning of or use by others of TV Time, including by means of overloading, flooding, spamming, mail bombing, or crashing TV Time;
- m. decompiles, disassembles, reverse engineers, or reverse assembles TV Time or any part of it, or otherwise attempts to discover any TV Time source code or underlying proprietary information;
- n. publishes or links to malicious content that may damage or disrupt another user's browser or computer; or
- o. in relation to any Content owned or distributed by us or our partners as well any digital media player provided in TV Time, clips, advertisements, graphics and characters: (i) modifying or using any Content otherwise than as allowed under these Terms; (ii) using, marketing or re-distributing any Content through any software application other than TV Time; (iii) downloading, re-transmitting, reproducing or storing the Content on any device or media (other than for any brief periods of time necessary for viewing or streaming the Content); and/or (iv) reformatting, optimizing or customizing the Content for display, distribution, or transmission.
You agree that your User Content and your conduct in using TV Time complies with the foregoing and acknowledge and agree that we have the right to determine whether your User Content is appropriate and complies with these Terms, to remove any of your User Content, and to terminate your account with or without prior notice.
You are solely responsible for your interactions with any other users and third parties with whom you interact. Notwithstanding the foregoing, we reserve the right (but have no obligation) to intercede in any disputes that arise out of those interactions. You agree that WNI is not and will not be responsible for any liability incurred as the result of such interactions. We do not approve, endorse, or make any representations or warranties with respect to User Content. You access and use all User Content and interact with other users at your own risk.
We reserve the right to investigate User Content, as well as violations of these Terms, including by requesting evidence of your rights in and to the User Content. WNI reserves the right to refuse and/or remove any Content, for any reason we deem, in our sole discretion, to be appropriate. By using TV Time, you irrevocably consent to such investigations.
5. Sweepstakes, Contests, and Promotions
Any sweepstakes, contests or other promotions (any, a “Promotion”) that may be offered via TV Time may be governed by a separate set of rules that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of User Content, and disclosures about how your personal information may be used. It is your responsibility to read these rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to those official rules, and you agree to comply with and abide by such rules and the decisions of the identified sponsor(s).
6. Third Party Content, Links, and Applications
To the fullest extent permitted by law, you agree to indemnify and hold harmless WNI, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “WNI Parties”) from and against any and all liabilities, claims, damages, taxes, fines, penalties, expenses (including reasonable attorneys' fees and costs), and other losses arising out of or in any way related to (a) your User Content; (b) your breach or alleged breach of these Terms or any applicable laws, rules, or regulations; (c) your use of or inability to use TV Time; or (d) your violation of any rights of another party, including other users. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
8. Suspension and Termination
We reserve the right to suspend or terminate your access to all or some of TV Time with or without notice if we, in our sole discretion, determine that you are in breach of these Terms or have engaged in conduct that we, in our sole discretion, deem inappropriate.
In the event of suspension or termination by WNI, we may delete or change your password(s) associated with your User Account; delete or change your User Account, including deleting your User Content, history, and favorites; and bar your further use of TV Time, as well as that of anyone sharing your email address or other account credentials. You understand that such actions may be taken without any liability whatsoever to you for any suspension or termination, including for deletion of User Content.
All provisions of these Terms which by their nature should survive termination, will survive termination of your access to TV Time, including without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
If your access to TV Time is terminated under these Terms, then you agree that you will not attempt to re-register with or access TV Time through use of a different username or otherwise. In the event that you violate the immediately preceding sentence, we reserve the right, in our sole discretion, to immediately take any or all of the actions set forth in these Terms without any notice or warning to you.
9. Disclaimer of Warranties
To the extent permitted by applicable law, your use of TV Time is at your sole risk, and TV Time is provided on an "as is” and “as available” basis, with all faults. We reserve the right to amend errors and update service information at any time without prior notice. WNI expressly disclaims all warranties, representations, and conditions of any kind, whether express or implied, including, without limitation, any implied warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement arising from use of TV Time. Neither WNI nor its suppliers and licensors makes any warranty or guarantee with respect to TV Time’s quality, effectiveness, reputation and other characteristics or that TV Time will meet your requirements; be error free, reliable, or free of viruses and other harmful components; or that access to TV Time will be timely and uninterrupted.
Any Content downloaded from or otherwise accessed through TV Time is accessed at your own risk, and you will be solely responsible for any damage to your property, including, but not limited to, your computer system and any device you use to access TV Time, or any other loss that results from accessing such Content.
10. Limitation on Liability
To the fullest extent permitted by law, in no event shall the WNI parties, be liable to you for any loss of profits, revenue or data, indirect, incidental, special, or consequential damages arising out of or in connection, directly or indirectly, with (a) your use or misuse of TV Time or any part thereof; (b) any claim that your User Content caused damage to a third party; (c) your breach or alleged breach of any provision of these Terms; (d) your violation of any rights of another, including without limitation any copyright, property, or privacy right; or (e) any User Content you Post through TV Time; (f) any bugs, viruses, trojan horses, or the like, regardless of their origin; (g) any other interaction with TV Time or any other user of TV Time whether based on warranty, contract, tort (including negligence), or any other legal theory, whether or not you have been advised of the possibility of such damages. You agree that your only right with respect to any problems or dissatisfaction with TV Time is to discontinue use of TV Time. To the fullest extent permitted by law, in no event will WNI's total liability to you for all damages or losses exceed the greater of (i) the amounts you have paid WNI to use TV Time, or (ii) fifty United States Dollars (US$50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose, but will not apply to liability of a WNI Party for any injury caused by the WNI Party’s fraud or fraudulent misrepresentation.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between WNI and you.
11. Location and Territorial Restrictions
TV Time is not intended for distribution in or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject WNI to any registration requirement within such jurisdiction or country.
WNI controls and operates TV Time from offices located in the United States and makes no representations or warranties that the information, products, or services contained in TV Time are appropriate for use or access in other locations. Anyone using or accessing TV Time from other locations does so on their own initiative and is responsible for compliance with United States and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of TV Time and/or the provision of any content, service, or other feature described or available at TV Time to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, service, or other feature that we provide.
Software related to or made available by TV Time may be subject to United States export controls. Therefore, no software from TV Time may be downloaded, exported, or re-exported (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to TV Time, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
You agree to comply with all rules, laws, and regulations that are applicable to your use of TV Time, including without limitation those governing your transmission or use of any software or data.
12. Binding Arbitration (“Arbitration Agreement”)
The dispute resolution provisions of this Section 12 are voluntary for residents of countries other than the United States. If you are a U.S. resident, the provisions of this Section 12 are binding.
- a. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of TV Time, to these Terms, or to any aspect of your relationship with WNI, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or WNI may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). You agree that you must commence any arbitration or other claim within one (1) year after the dispute arises, otherwise the claim is permanently barred, which means that you will no longer have the right to assert a claim regarding the dispute. This Arbitration Agreement will apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior version of this Arbitration Agreement.
If you agree to arbitration with WNI, you are agreeing in advance that you will not participate in or seek to recover monetary or other relief in any lawsuit filed against the WNI Parties alleging class, collective, and/or representative claims on your behalf. Instead, by agreeing to arbitration, you may bring your claims against the WNI Parties in an individual arbitration proceeding (except for any Batch Arbitration, as described below). If successful on such claims, you could be awarded money or other relief by an arbitrator. You acknowledge that you have been advised that you may consult with an attorney in deciding whether to accept this agreement, including this Arbitration Agreement.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- b. Process. To begin a claim, you must first send a letter describing your claim in detail, including your name and contact information, your legal claim, the specific facts giving rise to your claim (including the date(s) and amount(s) of any relevant transaction or interaction with us), and the requested relief) to Whip Networks, Inc., 1841 Centinela Ave., Santa Monica, CA 90404. You and we agree to attempt in good faith to negotiate an informal resolution of your claim. If a resolution is not reached within thirty (30) days, you may commence an arbitration action as set forth herein. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, will be subject to JAMS's most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. WNI will be entitled to make an offer of judgment in the arbitration proceeding. If the offer of judgment is not accepted, and the award is not more favorable than the unaccepted offer, you will be solely responsible for all costs incurred by WNI after the offer of judgment is made to the extent permitted by applicable law. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- c. Fees. If the arbitrator finds that you cannot afford to pay JAMS's filing, administrative, hearing and/or other fees, and you cannot obtain a waiver from JAMS, WNI will pay them for you. If the arbitrator determines the claims are frivolous, you agree to pay WNI’s attorneys’ fees and costs in the arbitration, to the extent permitted by applicable law.
- d. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and WNI. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and these Terms (including the Arbitration Agreement). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- e. Waiver of Jury Trial. You and WNI hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and WNI are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- f. Waiver of Class or Consolidated Actions. Except with respect to Batch Arbitration (as defined below), all claims and disputes within the scope of this Arbitration Agreement must be arbitrated on an individual basis and not on a class basis, only individual relief is available, and claims of more than one customer or user cannot be arbitrated or consolidated with those of any other customer or user. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth in Section 15.
You and WNI agree that, in the event that there are fifty (50) or more individual requests for arbitration of a similar nature filed against WNI within an approximately (30) thirty-day period (or otherwise in close proximity) regardless of the state(s) in which such claims are filed, JAMS will administer all such similarly situated arbitration demands on a collective basis as a single, consolidated arbitration (subject to a single set of fees, proceeding schedule, and, if required, hearing) before a single arbitrator in accordance with the requirements outlined elsewhere in this section, provided that – in the event that the arbitrator deems it impracticable or inequitable to administer all such claims collectively in a single arbitration – (s)he may group demands for arbitration into groups of not fewer than twenty (20) matters, plus a remainder group as needed (or as otherwise deemed by the arbitrator to be practicable, equitable, and in best keeping with the spirit of this provision) and arbitrate each group of matters as a single, consolidated arbitration (either structure a “Batch Arbitration”). You and WNI agree (1) to work with JAMS in good faith to facilitate the resolution of disputes on a Batch Arbitration basis and (2) that requests for arbitration are of a “similar nature” if they arise out of the same event, agreement, or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Disagreements over the applicability of this Batch Arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. This Batch Arbitration provision shall in no way be interpreted as authorizing a class or collective arbitration or action of any kind, or any suit or arbitration involving joint or consolidated claims, under any circumstances other than those expressly set forth in this section.
- g. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out by contacting us at Whip Networks, Inc., 1841 Centinela Ave., Santa Monica, CA 90404 or firstname.lastname@example.org within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your TV Time username (if any), the email address you used to set up your TV Time account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- h. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
- i. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with WNI.
- j. Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if WNI makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to WNI.
We may offer features and services that are available to you via your mobile phone or other mobile device. These features and services may include, without limitation, the ability to Post User Content to TV Time, receive messages from TV Time (including, without limitation, push messages), download applications to your mobile phone or access TV Time features (collectively, the "Mobile Features"). Standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
If you have registered for Mobile Features that utilize your mobile number, you agree to notify us of any changes to or deactivation of your mobile number and update your User Account to reflect this change.
14. Additional Terms Regarding Apple App Store
The following applies to any App accessed through or downloaded from the Apple App Store (an “Apple-Sourced App”):
- a. Acknowledgment. You acknowledge and agree that (i) these Terms are between you and WNI (or any third party developer that may own or operate the App) only, and not Apple, and (ii) WNI, not Apple, is solely responsible for the Apple Store Sourced App and content thereof.
- b. Scope of License. Your license to use the Apple Store Sourced App is non-transferable and limited to use on an Apple-branded product that you own or control, and as permitted by the “Usage Rules" set forth in the Apple Media Services Terms and Conditions.
- c. Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Store Sourced App.
- d. Warranty. In the event of any failure of the Apple Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Store Sourced App. As between WNI and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of WNI.
- e. Product Claims. You and WNI acknowledge that, as between WNI and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple Store Sourced App or your possession and use of the Apple Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- f. Intellectual Property Rights. You and WNI acknowledge that, in the event of any third-party claim that the Apple Store Sourced App or your possession and use of that Apple Store Sourced App infringes that third party's intellectual property rights, as between WNI and Apple, WNI, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
- g. Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- h. Third Party Terms. You must comply with any applicable third party terms of agreement when using the Apple Store Sourced App (e.g., your wireless data service agreement).
- i. Third Party Beneficiary. You and WNI acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the Apple Store Sourced App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the Apple Store Sourced App against you as a third-party beneficiary thereof.
- j. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the Apple Store Sourced App.
15. Governing Law and Venue
These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles, except to the extent that terms of service are affected by mandatory provisions of applicable law such as national implementations of the European Union Electronic Commerce Directive, Directive 2000/31/EC of the European Parliament and of the Council.
With respect to non-US residents who do not elect to participate in the dispute resolution provisions of Section 12, Disputes will be decided by a court of competent jurisdiction within your country of residence.
Except as otherwise provided in these Terms, you and WNI may litigate in the courts of Los Angeles, California to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. Any Dispute between US residents and WNI not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Los Angeles, California, and you and WNI agree to submit to the personal jurisdiction of that court.
16. Changes to Terms
To the extent allowed by applicable law, we reserve the right to update these Terms for any reason at any time without prior notice. When we make changes, the new Terms will be made available through TV Time. We may also provide notice to you in other ways, such as through contact information you have provided. However, it is your sole responsibility to review the Terms from time to time to view any such changes. Your continued use of TV Time after the effective date of the revised Terms or engaging in such other conduct as we may reasonably specify, constitutes your agreement to our revisions to these Terms to the fullest extent allowed by applicable law. If you disagree with any of our changes, you should discontinue your use of the Service.
17. Changes to Services
We are constantly updating TV Time, and that means we may modify, suspend, or discontinue any aspect of the services we offer through TV Time at any time for any reason, with or without notice to you, including the availability of TV Time in whole or in part.
18. General Provisions
If any part of these Terms is held invalid or unenforceable, that portion of the Terms will be construed in a manner to reflect, as nearly as possible, the original intention of the parties consistent with applicable law, and the remaining portions will remain in full force and effect.
Any failure on the part of WNI to enforce any provision of these Terms will not be considered a waiver of our right to enforce such provision.
WNI will not be liable for any delay or failure to perform, resulting from causes outside its reasonable control, including, but not limited to, acts of God, epidemic, pandemic, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
These Terms represent the final, complete, and exclusive statement of the agreement between us with respect to the subject matter hereof and supersede and merge all prior discussions between the parties with respect to such subject matter. As used in these Terms, "including" means "including without limitation."
19. Contact Us
If you have questions about these Terms, please email us at email@example.com or write to us at Whip Networks, Inc., 1841 Centinela Ave., Santa Monica, CA 90404.